Trump Could Take Obama’s Drone War Further Into the Shadows

The new president has inherited his predecessor’s drone program but might ditch the rules that kept it in check.

Lost amid coverage of President Donald Trump’s harmful executive orders and the “alternative facts” proclaimed by his spokespeople is the targeted killing program he inherited from Barack Obama. Those wondering whether Trump would have qualms about using armed drones already have their answer. On the first, second, and third day of his presidency, Trump authorized drone strikes in central Yemen. These operations cumulatively killed five suspected members of Al Qaeda in the Arabian Peninsula (AQAP), according to the U.S. Central Command (CENTCOM).

Trump has already demonstrated his clear willingness to utilize this awesome lethal program. We’ll soon know whether he also plans to adhere to the principles and processes for the use of drones detailed by Obama — and what that decision will mean for the effectiveness of the drone program.

Drone strikes in non-battlefield settings (Yemen, Somalia, and Pakistan) were a fundamental component of Obama’s foreign-policy legacy, both because of his unprecedented expansion of their use and because of his unexpected (but minimal) reforms in terms of accountability and transparency. Indeed, the Obama administration deserves credit for trying to create a lasting policy and legal framework to govern the use of lethal drones. This effort began during the 2012 presidential campaign, with the development of formal standards and procedures (dubbed the “playbook”) designed to constrain a more hawkish prospective Mitt Romney administration. The discussion, which involved exhaustive interagency debates, continued long after the 2012 election. In December 2016, the Obama administration finally published a 61-page compendium of decision-making processes and standards for targeted killings.

Fully capturing these reforms, and assessing whether they would endure into the Trump presidency, requires talking to people with firsthand insight into their drafting and implementation. Late last year, I convened 20 outside experts and government officials (both former and, at the time, current) who worked on or studied drone strikes for an off-the-record discussion. (A summary of the discussion is available here.) Four fundamental themes emerged.

First, participants unanimously agreed that the domestic legal underpinning for targeted strikes — the 2001 Authorization for Use of Military Force — had been stretched beyond the point of being credible. That law was written in the immediate aftermath of 9/11 but is now used to justify strikes against terror groups that either did not exist at the time of that attack, or are wholly unaffiliated with al Qaeda. One participant dubbed it a “failure of democracy and a legal time bomb.” Therefore, it was agreed that the Trump administration should propose, and Congress should pass, an updated authorization that includes the Islamic State. But there’s no initial indication Trump is interested in pursuing such an updated law.

Second, though generally supportive, participants noted that there are downsides to greater transparency about who can be targeted and how many noncombatants are killed in such operations. In particular, targeted terrorist groups are aware of when the United States will and will not launch attacks, and have therefore increasingly intermingled with civilian populations or used as human shields when traveling. In addition, the more the public knows about the standards applicable for drones, the more they may demand that similar standards are met for attacks using other weapons systems, such as artillery shelling and cruise missile strikes. That’s part of the reason why the Obama administration’s compendium of drone processes don’t include suggestions for greater transparency.

Third, meeting participants described the Obama administration’s approach as highly centralized and tailored for the president and his senior aides, particularly onetime counterterrorism czar and later CIA Director John Brennan. Obama was described as having a “legalistic mindset” that compelled him to scrutinize the evidentiary basis for individual strikes. Though nobody can know how carefully Trump — who has promised to both “eradicate radical Islamic terrorism” and avoid overseas commitments — intends to weigh evidence for proposed strikes, you might be able to guess. And this would mean there would be less apparent accountability at lower levels in the chain of command because it’s not clear who is weighing the evidence, if the buck doesn’t stop with the president. Indeed, commanders for Yemen are reportedly preparing to ask the White House for more direct authority over lethal counterterrorism operations, in a sign that they believe they should be empowered to conduct drone strikes and raids without sign-off from Washington.

Fourth, the participants broadly agreed that many of the Obama-era reforms would survive into the Trump administration, because explicitly removing them would be burdensome and could spur backlash from the national security bureaucracy. This would particularly be true for strikes conducted by the Joint Special Operations Command, because the standards and processes are now embedded within military doctrine passed on to new commanders and action officers. Regional military commanders are also aware that one Civilian Casualty “event” (an airstrike that causes civilian casualties) can greatly reduce a host-nation government’s cooperation for months at a time. However, several believed (or hoped) that the requirement that an individual pose a “continuing, imminent threat to U.S. persons” in order to be targeted would be rescinded. Relaxing targeting standards, they said, would provide the flexibility needed to counter increasingly networked adversaries.

The Trump administration is clearly undecided about some aspects of its lethal counterterrorism operation policies. White House spokesman Sean Spicer, when asked about the Jan. 29 Navy SEAL raid in Yemen, flatly declared, “No American citizen will ever be targeted.” Hours later, an anonymous official reversed this position: “U.S. policy regarding the possible targeting of American citizens has not changed.” I have been told by an involved U.S. government official that all aspects of American counterterrorism strategy, including non-battlefield drone strikes, will be formally reviewed and revised in due time. In light of the tragic raid, which killed AQAP operatives as well as a Navy SEAL and an unknown number of civilians — amazingly acknowledged by CENTCOM only after a three-day delay — it’s easy to imagine Trump deciding to follow Obama in relying more heavily on drone strikes than manned raids.

Some policy incoherence can be forgiven in the first weeks of a new administration. But the past two weeks — during which Trump signed a slew of executive orders and presidential memos apparently without consulting or notifying the affected agencies, let alone Congress — do not bode well for those hoping for a careful consideration of drone program rules inherited from the Obama administration, much less a concerted pursuit of new reforms.